Drone Law Expert: Don't Rush to Enforce No-Fly Zones

A lawyer in the emerging field of unmanned aircraft regulation says that no-fly zones barring drones from the airspace above private property do not have the force of law — and maybe they shouldn't, because the privacy and safety concerns cited by drone-wary homeowners might be exaggerated.

"What's the concern about something flying that high off the ground?" lawyer Brendan Schulman told "MidPoint" host Ed Berliner on Newsmax TV Friday, referring to NoFlyZone, a registry for homeowners who want to establish no-drone zones around their properties.

"If it's some kind of privacy concern, we already have … invasion of privacy statutes and Peeping Tom laws," said Schulman, adding that "the technology itself shouldn't be regulated in a way that's inconsistent with what the actual legal interests are.

"What is it about a drone at 4[00] or 500 feet that's causing people to think 'I should shoot it down,' or, 'I need a law that protects me against it?' " he said. "I don't understand that."

And as the skies fill with personal and commercial robo-craft, courts or legislatures might wind up deciding how low drones can go before they run into property rights, said Schulman, a self-described fan of remote-controlled model aircraft.

"There's a really interesting and unresolved property rights issue here," said Schulman. "If you go back to the beginning of the country, airspace was owned by the private property owner — there are Supreme Court cases on that.

"And when airplanes came along, the country had to figure out how to allow airplanes to fly across people's airspace without triggering claims," he said. "We did that by separating the high, navigable airspace from what's low to the ground.

"Now drones pose a tool that can be used at lower altitudes," he said, "and it does raise a question about who owns the sky in the backyard. Is it still the property owner, or is it in some way regulated by the federal government? Or is it something else?"

Schulman also advised against heavily regulating drones based on fears of their use as weapons against civilian populations.

"We've seen terrorists use pressure cookers to hurt people, and obviously rental trucks and cell phones, and just about anything you can think of," he said.

In those instances, he said, "you're really talking about national security or law enforcement against people who are committing a crime regardless of the technology.

"The important thing, to my mind, is you would not want to put into place a restrictive law that would take away the benefits of the technology," said Schulman, citing the growing use of drones in areas as varied as agriculture, cinematography and building inspection.

"I have a client that has gone out on search and rescue [missions] and has found missing people using the drones," he said. "We don't want to curtail these great benefits of a new technology before we understand what the problems are. If there is a national security issue, that can be dealt with the way that other national security issues are dealt with."

Schulman compared drones today to the Internet in the 1990s.

"There's a ton of promise and there are challenges that we are just beginning to appreciate," he said. "There's no one who could've predicted in the mid-90s all the problems the Internet has caused: cyber security, identity theft, defamation, cyber bullying, exploitation of minors, and we've dealt with those problems as they've come up.

"It's important to understand what is the practical societal problem we're trying to solve with legislation or regulation before we put into place something we might regret," said Schulman.